Slowly, California law enforcement agencies are changing the way that police officers operate and the methods they use. In San Francisco, authorities have told law enforcement officers to use “minimal” rather than “reasonable” force when handling uncooperative suspects. In Los Angeles, police officials have ordered patrol officers to approach the homeless with “compassion and empathy.” Expectations are rising for the conduct of police officers in our state.

However, learning about any specific police misconduct that may still be taking place is extremely difficult under California law. A 1978 California statute blocks public access to police personnel records, and in 2006, the California Supreme Court upheld the statute (in the case Copley Press vs. Superior Court) by ruling that police personnel records must never be released by any government agency.

As a consequence of the 1978 law and the 2006 California Supreme Court ruling, Oakland City Council members can’t even obtain the details about a group of officers who were reportedly taking advantage of a young prostitute. In a time of both rising distrust and rising expectations of police officers, some reasonable reform of California’s law regarding police personnel records is becoming virtually imperative.

Although law enforcement officers generally have broad discretion to conduct their duties in California and the other forty-nine states, the U.S. Constitution restricts how far the police can go to enforce the law. If a police officer violates someone’s rights, that person has legal recourse.

A victim of police misconduct, police discrimination, or police brutality can file a discrimination or personal injury lawsuit and ask a California civil court for compensation and for justice. An experienced San Francisco civil rights attorney can help.

Suing a government agency or a government employee for discrimination or for personal injury is a bit more difficult than suing a private company or a private citizen. Before any lawsuit can be filed against any government employee or agency in the state of California, a number of criteria must be satisfied. In most cases, government agencies and government employees are protected from civil lawsuits by a legal principle called “sovereign immunity.”

WHAT IS SOVEREIGN IMMUNITY?

The legal principle of sovereign immunity protects the government and its agents from legal action unless the government chooses to waive that immunity. In 1890, the United States Supreme Court held that the Eleventh Amendment to the United States Constitution reaffirms that states possess sovereign immunity and are therefore generally immune from being sued without their consent. In several of its 20th-century rulings, the Supreme Court substantially strengthened the sovereign immunity of the states.

Yes, it seems unfair that the government can simply choose not to be sued, especially in cases where someone has suffered harm or injury. However, in the United States, sovereign immunity is not absolute, and those who have been genuinely injured by a government agency or a government employee usually do have legal recourse. A number of state and federal laws have been established to allow the victims of police misconduct to pursue discrimination and personal injury lawsuits and to receive monetary damages when those lawsuits prevail.

Federal law (specifically 42 U.S. Code, Section 1983) establishes the right to sue an individual who, while acting as a government employee, violates someone’s constitutional rights. Government employees may not violate anyone’s legal or constitutional rights, and the victims of such violations may sue for damages. The most common allegations brought against police officers in civil lawsuits are for false arrest, malicious prosecution, and the use of excessive or brutal force:

False Arrest: A false arrest happens when the police had no probable cause to take someone into custody. There must be enough facts and evidence for a reasonable person to conclude that an arrest was appropriate.

Malicious Prosecution: A malicious prosecution is unwarranted legal action by the government against an individual – action without probable cause.

Excessive Force: Excessive force happens when a police officer’s use of force is unreasonable, without regard to the officer’s intentions.

WHAT IS YOUR RECOURSE IF YOU ARE A VICTIM OF POLICE MISCONDUCT?

Police officers and other law enforcement officials are expected to acknowledge and protect everyone’s civil, legal, and constitutional rights before and after an arrest and even after a criminal conviction. If you become a victim of police discrimination or brutality, a good civil rights lawyer will examine your case and listen to your concerns. If you file a lawsuit and the lawsuit prevails, you may be compensated for medical expenses, lost wages, and related damages.

In California, a lawsuit for police misconduct is a complex procedure. Precise rules must be followed, and non-negotiable deadlines must be met. For claims of false arrest and false imprisonment, victims must file a “notice of claim” within six months of the incident – or waive the right to sue.

A notice of claim merely notifies the government of your intention to pursue a lawsuit, and you cannot sue unless the notice of claim has been filed first. Don’t wait six months to file a notice of claim. If you become a victim of police misconduct, you should discuss the case at once with an experienced San Francisco civil rights attorney.

IF YOU SUE THE POLICE, HOW CAN YOU HELP YOUR CASE?

If you have been the victim of illegal conduct by the police – which could include racial profiling and discrimination, illegal search and seizure, excessive force, wrongful arrest, or police brutality – here’s how you can help your own case. Write down every detail of the incident that you can remember. If there were witnesses, try to obtain their names and contact information. Photographs of any injuries or property damage are helpful, and if you receive medical treatment as a result of a police misconduct incident, get the receipts and medical records to prove it and to show precisely how you were injured.

The overwhelming majority of California’s law enforcement officers conduct themselves appropriately, but in any police agency – even in the San Francisco Police Department – the bad officers work shoulder-to-shoulder with the good ones. The current changes that are happening to policing in California – the calls for “compassion” and “empathy” – are long overdue. The history of police misconduct and brutality – in California and across the United States – is a dreadful history, and we need to put it behind us – permanently.

By: Fred Geonetta

Frederick J. Geonetta is a graduate of the University of California, Hastings College of Law. His legal practice is entirely devoted to litigation. Mr. Geonetta has spent the past 25 years in private practice representing both plaintiffs and defendants who have been harmed or wronged by the actions of others or who have been falsely accused of causing harm to others. He represents clients across the U.S. and international clients who seek U.S. legal advice or representation.